On October 1, 2007, Lambda Legal issued a preliminary analysis of the differences between H.R. 2015 (the version of ENDA that was introduced into Congress in April of this year) and the new, less protective version of ENDA recently introduced to replace it.
In your press release issued late Wednesday in response to our comments, you asserted that our analysis was flawed and that the new version of ENDA only omits reference to people
who are transgender but “makes no other change in the wording on this point.”
Unfortunately, that is not true, because the definition of “gender identity” that was removed from the originally proposed bill included “…gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual.”
Needless to say, Lambda’s sticking to their original assertion.
Read the entire letter, after the jump.
Dear Congressman Frank:
It is not pleasant to have to disagree with a Congressman who has done so
much that we admire and who has been such a stalwart leader for our
community, but your recent response to our organization’s legal analysis
of the failings of H.R. 3685 (the weakened version of the Employment
Non-Discrimination Act [ENDA] introduced into Congress last week) forces
us to reply. This is a difference of opinion over legal analysis, not
over goals. We all share the goal of enacting a strong and effective law
to protect the LGBT community against employment discrimination.
On October 1, 2007, Lambda Legal issued a preliminary analysis of the
differences between H.R. 2015 (the version of ENDA that was introduced
into Congress in April of this year) and the new, less protective version
of ENDA recently introduced to replace it. In your press release issued
late Wednesday in response to our comments, you asserted that our analysis
was flawed and that the new version of ENDA only omits reference to people
who are transgender but “makes no other change in the wording on this
point.” Unfortunately, that is not true, because the definition of
“gender identity” that was removed from the originally proposed bill
included “…gender-related identity, appearance, or mannerisms or other
gender-related characteristics of an individual.”
These words are critically important. This year’s original version of ENDA
would protect against discrimination not only on the basis of sexual
orientation or transgender identity. Unlike the more recent version, the
original version also would prohibit discrimination on the grounds that a
person does not have an appearance, mannerisms or other characteristics
that may be perceived by some people as different from those traditionally
associated with that person’s sex.
This is a very important protection, one that many LGBT organizations have
been advocating to have expressly enacted into law for a number of years.
Earlier today we released a joint statement with four other LGBT legal
organizations to further explain our concerns about this to the community.
After much negotiation with members of Congress, this protection was
included in the version of ENDA introduced in April, only to have it cut
out of the version introduced last week.
There can be no debating that this cut weakened the bill. As our prior
analysis indicated, this cut diminished the bill not only by excluding
transgender people — a consequence we strongly oppose in itself. The cut
also made the more recent bill far weaker by denying the protection that
would have been provided by the earlier version to those who may not
identify as transgender but who are discriminated against because they are
perceived as gender nonconforming. Lesbians, gay men and bisexuals
frequently are perceived that way.
As our original analysis indicated, a version of ENDA that does not
prohibit discrimination based on gender nonconformity is inadequate. In
cases brought under Title VII (the federal law that prohibits sex
discrimination and sexual harassment), employers often try to argue that
employees who have been discriminated against or sexually harassed were
really discriminated against or harassed based on their sexual
orientation, not their sex. Because Title VII does not prohibit sexual
orientation discrimination, many lesbians, gay men and bisexuals have been
denied relief when increasingly conservative federal courts have agreed
with those employers. In just the same way, we are very concerned that
employers may argue that a law that prohibits sexual orientation
discrimination but that intentionally eliminated the protections against
discrimination based on gender nonconformity would provide no protection
to employees judged by an employer to be non-conforming — that is, men
who were judged too effeminate or women judged too masculine. We have no
doubt that, were the weaker version of ENDA to pass, some employers will
claim they have nothing against lesbians, gay men and bisexuals per se,
but that they do not want men whom they see as unmanly or women who they
believe are not feminine enough, and loophole would be invoked against
almost any lesbian, gay man or bisexual who sought protection against
discrimination under ENDA.
You stated that you were not aware of any instances where state laws that
prohibit only sexual orientation discrimination and not gender identity
discrimination have proven inadequate. Unfortunately, such cases exist.
For example, just two years ago, a federal court of appeal ruled that a
lesbian who claimed that she was discriminated against because she did not
conform to stereotypical expectations of femininity did not to have a
viable claim under New York state’s Sexual Orientation Non-Discrimination
Act (SONDA), which fails to include an express prohibition on
discrimination based on gender identity and expression.
Lambda Legal appreciates the confidence you expressed in our organization
by stating that we could “easily defeat such an end run around the sexual
orientation language.” If this weaker version of ENDA were to become law,
we certainly would try and hope that we would be able to do so. But
without an express prohibition on discrimination based on gender
nonconformity, there is a real risk that we might not succeed. That is a
risk that we and our colleagues at other legal organizations repeatedly
have seen play out in other anti-discrimination laws, and it is a risk to
which we believe members of our community should not be exposed.
It is beside the point that earlier versions of ENDA, many of which were
the result of cumulative compromises made in Washington, D.C., may not
have guarded against this danger. The version of ENDA originally
introduced this year did, and the new version, introduced last week, did
not. The more recent version is a law that provides inadequate protection
to LGBT people. Lambda Legal and many other LGBT groups therefore oppose
In your press release, you further assert that it was appropriate for the
more recent version of ENDA to delete the previously included provision
that state and local governments could require domestic partner benefits
and to permit a blanket exemption for all religious organizations that
exists in no other federal antidiscrimination laws. You argued that
contrary provisions in the earlier, stronger version of ENDA were a
mistake or would have drawn strong opposition and that you are not aware
of anyone involved in the drafting of the bill that raised objections to
these changes. In our view, these arguments also are beside the point.
Our analysis showed that the more recent version of ENDA provides
significantly less protection to LGBT people in numerous respects than the
version introduced earlier this year. This really cannot be contested.
The new version of ENDA is less protective. Whether or not these stronger
provisions might have survived amendments when the matter was voted on,
the undeniable fact is that the new version of ENDA deleted them without
there even being a debate or a vote.
Finally, we want to emphasize the main point we and other LGBT groups have
been trying to make. It simply is wrong for lesbians, gay men and
bisexuals to seek protection for themselves and leave transgender people
in the dust. Transgender individuals have fought against discrimination
along with gay people years before Stonewall and were prime actors at that
epic moment in our joint civil rights history. Imagine if the proponents
of the 1964 Civil Rights Act had decided that the prohibition against race
discrimination included only some racial groups but not others. For gay
people to sacrifice transgender people to get protection only for
themselves would be wrong.
We stand by that position and our further concern that a sexual
orientation antidiscrimination law that has eliminated protections against
discrimination based on gender nonconformity will provide less secure
protection for everyone, including lesbians, gay men and bisexuals.
Unfortunately, as you said yourself, “bigots [will] try to get around the
law.” We need a law that will make that as hard as possible. That is why
we continue to support H.R. 2015, the version of ENDA introduced in April,
and to oppose H.R. 3565, the version of ENDA introduced last week.
Kevin M. Cathcart